SOLOMON OJO OLUWOLE V. MODUPE MARGARET
(2011)LCN/4459(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of April, 2011
CA/AE/59/2010
RATIO
PROLIFERATION OF ISSUES: ATTITUDE OF THE COURTS TOWARDS PROLIFERATION OF ISSUES
It has been restated in quite a number of cases, by this Court and the Supreme Court that, it is inappropriate to proliferate number of issues from the Grounds of Appeal filed, as doing that compounds rather than clarifies matters in controversy in the appeal. Thus, the formulation of more, issues than the grounds, of appeal is frowned upon and therefore considered as defective. While it is appropriate to formulate an issue from more than one ground of appeal. Accordingly, the practice of it formulating more than one issue from a ground of appeal was deprecated by the Supreme Court in the case of ALHAJI SULE AGBETOLA V. LAGOS STATE EXECUTIVE COUNCIL (1991) 6 S.C.N.J. P.1 at P.12. See also AJA V. OKORO (1991) 7 N.W.L.R (Pt 260) P.273; EDEM V. CANON BALL LTD (1998) 6 N.W.L.R (Pt.553)P.298 at P.307; AKPABUYO V. DUKE (2001) W.R.N. P.80 at PP.92-93 and AJIEBOR V. A.G; EDO STATE (2001) 13 W.R.N. P. 166 at PP.176-177. PER HARUNA M. TSAMMANI, J.C.A.
JURISDICTION OF THE COURT: WHETHER A COURT WILL BE DIVEST OF ITS POWER TO MAKE ORDER WHERE ITS JURISDICTION WAS INVOKED UNDER A WRONG LAW OR RULES OF COURT
It is the law that, where a court has jurisdiction to make an order, the fact that the court is called upon to invoke its jurisdiction, under a wrong law or rules of Court, does not divest the court of the power to make the order sought. The court has the vires to grant or make the order under the relevant law or rule of Court. See Joseph O. FALOBI V. ELIZABETH O. FALOBI (1976) 9-10 S.C. P1; OKE & ORS V. ANEDUN & ANOR (1986) 2 N.W.L.R (PT.23) P.58; MAJA V. SAMOURIS (2002) 7 N.W.LR. (PT.765) P.78 at P.106 and MAJEKODUNMI V. W.A.P.C.O (1992) 1 N.W.L.R. (PT.219) P.564 at P.571 SALAMI, J.C.A (as he then was). PER HARUNA M. TSAMMANI, J.C.A.
DEMURRER PROCEEDINGS: NATURE OF A DEMURER PROCEEDINGS
Now, the procedure under the said Order 24 of the Ondo State High Court Rules (Supra) is an off-shoot of the procedure hitherto known in England and most common law countries as demurrer proceedings. The operation of demurrer proceeding, before it was abolished in England, was the desire and necessity to permit a party to raise an objection on a point or points of law, so as to avoid unnecessary prolongation of litigation in Court which always led to unnecessary high cost of litigation. Thus, a defendant who conceived a point of law which could put an end to the case of his adversary, he was liberty to raise that point of law in limine, calling on the court to dismiss the action without the need for him to file a defence. A demurrer proceeding therefore entailed that where a defendant conceived that he has a legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or establish, the plaintiff is not entitled to any decree against the defendant. In such a situation, the defendant may raise the defence of demurrer by a motion urging the court to dismiss the suit, without him (defendant) being required to answer questions of fact from the plaintiff. In a demurrer proceeding therefore, the defendant must first admit the truth of the plaintiffs allegations and no evidence or questions of fact must be allowed, at that stage. See ALHAJI SULE KATAGUM & ORS V. M.E.K. ROBERTS (1967) 1 ALL N.L.R. P.127; FOKO V. FOKO (1968) N.M.L.R P.44; SHELL B.P. PETROLEUM DEVE. CO. OF NIGERIA LTD V. ONASANYA (1976) 6 S.C. P.89 at P.94; IGBOKWE V. UDOBI (1992) 3 N.W.L.R (PT.228) P.214 at P.229 and SANTA FE DRILLING (NIG) LTD V. AWALA (1999) 6 N.W.L.R. (PT.608) at P.629. It therefore means that in a demurrer proceeding, the defendant ought not file any statement of defence. Thus, where pleadings had been filed and exchanged, and a defendant has raised the point of law in his defence, it is the law that, the case must proceed to trial, and the legal point so raised would then be properly taken by the trial court after hearing evidence. See OBUMSELL V. UWAKWE (2009) 8 N.W.L.R (PT.1142) P.55 and ROCKSHELL INT’L LET V. B.Q.S. LTD (2009) 12 N.W.L.R (PT.1156) P.640 at P.670 PARAS. C-E. PER HARUNA M. TSAMMANI, J.C.A.
PLEA OF RES JUDICATA: EFFECT OF A SUCCESSFUL PLEA OF RES JUDICATA
A plea of res judicata has the effect of ousting the jurisdiction of the court, as no court of law is permitted to litigate again on a matter which had previously been heard and determined to finality by a court of competent jurisdiction. I had also pointed out that as the objection raised in the instant, case could, if upheld by the trial court dispose of the whole action… PER HARUNA M. TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
SOLOMON OJO OLUWOLE Appellant(s)
AND
MODUPE MARGARET Respondent(s)
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of Hon. Justice J.O. Adeyeye of the Ekiti State High Court, sitting at Ado- Ekiti. The Respondent as plaintiff before the lower court had taken out a writ of summons against the Appellant (as Defendant) wherein he sought for the following reliefs:-
(a) A declaration that the four bedroom flat bungalow (sic) lying, Ado-Ekiti bounded on the left hand side by untarred road, on the right hand side by Mr. FAMILUSI’S house, behind by uncompleted building under construction and on the front side by untarred road is joint property of the plaintiff and the defendant.
(b) An equal, just and fair shares in the property described in claim (a) above.
(c) An equal, just and fair shares in NISSAN CABSTAR pick-up tuck (sic) with registration No. XA 534 KLE jointly bought with the defendant.
(d) An order of the Court allowing the plaintiff to remove all her kitchen utensils and other household materials still in the house describe (sic) in (a) above.
The same reliefs were claimed in paragraph 21(a)-(d) of the statement of claim dated 19th October, 2007. Upon services on him the Appellant filed a statement of defence dated the 31/03/2008 wherein he denied the Respondent’s claims. The Appellant went on to plead under paragraph 9 of the statement of defence as follows:
9. The defendant shall challenge the competence of the suit of the plaintiff preliminarily, same having been caught by the doctrine of estoppel,
(i) The house or property in question which is the subject matter of this suit had already been determined in Suit No: HAD/7D/2005 which judgment is hereby pleaded.
(ii) The suit is res judicata.
Issues were therefore joined whereof, the Appellant (Defendant) filed a Motion on Notice dated and filed the 3rd July, 2008 pursuant to Section 151 of the Evidence Act, Order 47 rule 1 of the Ondo State Rules of the High Court as applicable to Ekit State, Section 6(b) of the Constitution of the Federal Republic of Nigeria, 1990 (sic) and the Inherent Jurisdiction of Court, The Grounds upon which the application was brought are as follows:
(i) Legs A and B of plaintiff’s claim had already been, determined as such the said legs and the res therein constitute issue estoppels.
(ii) The res in leg C of plaintiff’s claim belongs to defendant solely, only, exclusively and mainly.
(iii) Plaintiff has nothing or property in the said building having removed same and damaged the said building.
(iv) The suit is an abuse of Court processes.
(v) The suit is unmaintanable (sic) and grossly inconsequential.
And for such further or other Orders as this Honourable Court may deem fit to make in the circumstances.
The said application was supported by an affidavit of 14 paragraphs deposed to by the Appellant personally, and attached to the said affidavit is Exhibit SP, which is the judgment of Ekiti State High Court in Suit No; HAD/7D/2005 and other documents marked as Exhibits S01, S02, S03 and S04. The Respondent filed a counter affidavit of 15 paragraphs wherein he resisted the said application. She also annexed a number of documents to the counter affidavit which were unmarked. Both parties filed Further and Better Affidavit and Further and Better Counter Affidavit respectively. Arguments on the motion were taken before the lower court on the 20/10/2008 and 18/11/2008 respectively. In a ruling delivered on the 11th day of February, 2009, the learned trial judge held that the application lacked merit and consequently dismissed same. The Appellant is dissatisfied with the said decision and has now appealed to this Court.
The Notice of Appeal is dated and filed the 24th day of February, 2008 and has a single ground of appeal. The sole Ground of Appeal reads thus:
The Court erred in law when it refused the application of the appellant on the ground that evidence ought to be led at the trial of the case.
And this has occasioned a miscarriage of justice.
PARTICULARS OF ERROR
(i) Res judicata is an issue of law that ousts the jurisdiction of a Court.
(ii) It is permissible to raise the issue of res judicata or issue estoppel in the pleadings and determine same by motion on notice with supporting affidavit.
(iii) Exhibit SP which is the judgment of a competent Court of law, and attached to the motion paper was not challenged.
(iv) Exhibit SP shows clearly that the parties, the issues or subject matter in the two cases are the same.
(v) It is permissible to take judicial notice of Exhibit SP i.e. the judgment of a competent Court of law and act thereupon.
(vi) Adducing evidence at the trial on an issue already determined is tantamount to re-litigation:
(vii) The lower court ought to have studied the pleadings, acted on Exhibit SP or the unchallenged affidavit evidence and dismiss the respondent’s suit.
From this sole, Ground of Appeal, the Appellant also formulated this single issue for determination as follows:
(A) Whether it is necessary, mandatory or a legal requirement to lead evidence at the trial in estoppels per rem jiudicata cases rather than file a notice of preliminary objection to terminate cases in respect thereof.
The Respondent adopted the lone issue formulated by the Appellant and proceeded to add another issue, to wit:
Whether the learned trial judge was right in dismissing the preliminary objection raised or the ground of estoppel per rem judicatam, by the Appellant.
The Appellant filed a Reply Brief on the 20th day of January, 2010 wherein he attacked the additional issue formulated by the Respondent from the single Ground of Appeal.
The Appeal was heard on the 17th of February, 2011. Mr. Taiwo Ogunmoroti who settled the Appellant’s Brief of Argument, adopted the said Brief of, Argument and the Reply Brief and urged us to allow the appeal and set aside the ruling of the trial court. Mr. E.O. Adedeji of learned counsel for the Respondent also adopted the Respondent’s Brief of Argument and urged us to dismiss the appeal and affirm the ruling of the lower court.
As I pointed out earlier, learned counsel for the Appellant in the Reply Brief, attacked the additional issue for determination raised by learned counsel for the Respondent, He contended that the procedure adopted by Respondent whereby he formulated an additional issue for determination after adopting the sole issue formulated by, the Appellant, from the sole ground of appeal, is not permitted by law. That the approach adopted by the Respondent’s counsel is not legally and procedurally permissible since the Appellant filed a single Ground of appeal and formulated one issue therefrom. He then relied on the cases of KHALIL V. YAR’ADUA (2003) 16 N.W.LR. (Pt.8466 at P.481 Paras. E-H and OKOLO V. U.B.N LTD (2004) 3 N.W.L.R. (Pt.859) P.87 at P.111 Paras D-E to submit that a party cannot formulate more than one issue from the ground of appeal, but an issue can be covered by more than one ground of appeal.
It has been restated in quite a number of cases, by this Court and the Supreme Court that, it is inappropriate to proliferate number of issues from the Grounds of Appeal filed, as doing that compounds rather than clarifies matters in controversy in the appeal. Thus, the formulation of more, issues than the grounds, of appeal is frowned upon and therefore considered as defective. While it is appropriate to formulate an issue from more than one ground of appeal. Accordingly, the practice of it formulating more than one issue from a ground of appeal was deprecated by the Supreme Court in the case of ALHAJI SULE AGBETOLA V. LAGOS STATE EXECUTIVE COUNCIL (1991) 6 S.C.N.J. P.1 at P.12. See also AJA V. OKORO (1991) 7 N.W.L.R (Pt 260) P.273; EDEM V. CANON BALL LTD (1998) 6 N.W.L.R (Pt.553)P.298 at P.307; AKPABUYO V. DUKE (2001) W.R.N. P.80 at PP.92-93 and AJIEBOR V. A.G; EDO STATE (2001) 13 W.R.N. P. 166 at PP.176-177. In the circumstances, I agree with learned counsel for the Appellant that the 2nd issue formulated by learned counsel for the Respondent is unnecessary. I accordingly discountenance same. I shall therefore determine this appeal on the sole issue formulated by learned counsel for the Appellant and as adopted by the Respondent’s learned counsel.
Now, in arguing the sole issue for determination in this appeal, learned counsel for the Appellant contended that res judicata is an issue of law that can oust the jurisdiction of a court of law and which issue must be raised, in the pleadings. He drew our attention to order 24 rules 2 and 3 of the Ondo state High Court (Civil procedure) Rules as applicable to Ekiti state to further contend that, res judicata being an issue of law which if properly raised in the pleadings can conveniently oust the jurisdiction of the Court and therefore can be fought, decided or determined through or by way of a preliminary objection, The cases of ETEA V MBA (2009) 3 N.W.L.W (PT.1127) P.1.at P.16 paras C-D; EHOCHE V. IJEGWA (2003) 7 N.W.L.R. (Pt.818) P.139 at PP.154 and 155-156 Paras H-A were also cited in support.
It is also the contention of learned counsel for the Appellant that, it is not in doubt that a party can file or bring a motion for preliminary objection after pleadings have been exchanged to strike out a suit if such a suit has been caught by the doctrine of estoppel per rem judicatam. That in that respect, the learned trial judge ought to have been guided by Order 24 rules 2 and 3 of the Rules of the High Court of Ondo State as applicable to Ekiti State, in arriving at a just decision. He called in aid the, case of MISC. OFFENCES TRIBUNAL V. OKOROAFOR (2001) 18 N.W.L.R (Pt.745) P.295 at P.358 PARAS. C-E, to further submit that, while the process and procedure taken and adopted by the appellant at the, lower court was right the, process and Procedure adopted by the learned trial judge in rejecting the objection was wrong: The case of ONWUKA V. ONONUJU (2009) 11 N.W.L.R. (Pt.1151) P.174 at P.204, PARAS. F-G was also cited in support. That in any case, Exhibit “SP” which is the judgment of a competent court of law was not challenged. He then reproduced paragraphs 3, 4, 5, 6 and 7 of the affidavit of the Appellant in support of the motion before the lower court and also quoted a portion of the judgment, of the lower court at page 19 of the record, to submit that, the subject matter of the dispute had already been adjudged in favour of the Appellant and that there is no appeal against that decision. That the learned trial judge ought to have taken judicial notice of the judgment (Exhibit “SP””) under Section 74 of the Evidence Act and dismiss the Respondent’s claim before him. The case of IJAODOLA V. REGT. T.T & S.C.M (2008) 15 N.W.L.R (Pt.110) P.387 AT P.408 PARAS A-B was cited in support.
Learned counsel for the Appellant went on to submit that, Exhibit ‘SP’ is a Certified True Copy of an Ado-Ekiti High Court presided over by I.O. Akeju, J (as he then was) which the learned trial judge ought to have acted upon, and therefore adducing evidence at the trial on an issue already determined, As the learned trial judge decided, is tantamount to re-litigating on the matter in respect of the building at, Better: Life Area, Ado-Ekiti, That in any case, the Appellant filed an affidavit in support of his motion, which is in itself evidence upon which the learned trial judge ought to have used in determining the matter. That the learned trial judge ought to have studied the pleadings, Exhibit ‘SP’ or the unchallenged affidavit evidence and dismiss the, Respondent’s suit, The case of H.S. ENGR. LTD V. S.A. YAKUBU (NIG.) LTD (20090 10 N.W.L.R (PT.1149) at P.429, PARAA. B was cited in support. See also THE HONDA PLACE LTD V. GLOBE MOTORS LTD (2005) 14 N.W.L.R. (PT.945) P.273 at PP.293-294 PARAS F-A. Learned counsel then urged us to resolve the sole issue in favour of the Appellant against the Respondent.
In response, learned counsel for the Respondent made extensive submissions on the requirements of a plea of estoppel per rem judicatam. The long and short of his argument is that, the judgment of HAD/7D/2005 relied on by the Appellant is not the same as the claim of the Respondent in HAD/106/2007 which is now the subject of this appeal. He buttressed his contention by quoting portions pf the Appellant’s claim in the instant case and that of the Respondent in Suit No; HAD/7D/2005 including the judgment therein. He then submitted that the affidavits and counter-affidavits before the lower court are full of controversy, argument and counter-argument and therefore the learned trial judge was right in holding that those controversies could not be resolved through affidavit evidence. That it is trite law that where there are conflicts in the affidavits placed before the Court by the parties, the Court should call oral evidence to resolve the issues. The case of ANISU V. OSAYEMI (2008) 19 W.R.N. P.138 at P.155 was cited in support, we were therefore, urged to dismiss the appeal and, to uphold the decision of the trial court ordering the suit to proceed to hearing on the merit.
I have carefully perused the Appellants Reply Brief. I did not find anything else new therein that could be useful in the resolution that arose for determination in this appeal, except for the submission that, no oral evidence can alter, vary, change or remove the content of a written document, particularly ,a judgment of a court by virtue of section 132 of the Evidence Act. The case of IWELEGBU V. EZEANI (1999) 2 N.W.L.R (PT.630) P.266 at P.277 PARAS. C-D was cited in support.
Now, I have observed that the Appellant had filed a Motion on wherein he sought that the Respondent’s claim be struck out or dismissed in limine for incompetence or lack of jurisdiction. From the tenor of his argument, he had argued that the matter be dismissed because it was caught by the doctrine of estoppel per rem judicatam. lt is trite law that when a plea of estoppel per rem judicatam is pleaded, it has the effect of ousting the jurisdiction of the Court as the plea entails that the matter had been litigated upon and finally determined as between the parties or their privies by a court of competent jurisdiction. It therefore means that the matter cannot be litigated again. In that sense, the jurisdiction of the Court is effectively ousted from re-litigating the matter. Having pleaded and raised res judicata therefore, the matter was sought to be dismissed in limine based on res judicata pleading.
I have however noted that the Appellant brought the motion before the lower court mainly under Order 47 rule 1 of the Ondo State High Court (Civil Procedure) rules, applicable to Ekiti State and the inherent jurisdiction of the Court. After a careful consideration, I am of the view that the application ought to have been brought under Order 24 of the said rules (Supra). However, learned counsel for the Appellant argued his motion under the said Order 24 rules 2 and 3 of the said rules (Supra). It is the law that, where a court has jurisdiction to make an order, the fact that the court is called upon to invoke its jurisdiction, under a wrong law or rules of Court, does not divest the court of the power to make the order sought. The court has the vires to grant or make the order under the relevant law or rule of Court. See Joseph O. FALOBI V. ELIZABETH O. FALOBI (1976) 9-10 S.C. P1; OKE & ORS V. ANEDUN & ANOR (1986) 2 N.W.L.R (PT.23) P.58; MAJA V. SAMOURIS (2002) 7 N.W.LR. (PT.765) P.78 at P.106 and MAJEKODUNMI V. W.A.P.C.O (1992) 1 N.W.L.R. (PT.219) P.564 at P.571 SALAMI, J.C.A (as he then was). That aside, I recommend that council should always ensure that the right law or rules of court are placed before the court, as that would undoubtedly make the work of the judges easier at the time of writing judgments. The submissions of counsel before the lower court and the judgment of the, learned trial judge, and indeed the submissions of counsel before this Court show that the motion was taken and considered under Order 24 rules 2 and 3 of the Ondo state High court (court civil procedure) rules , 1987 as applicable to Ekiti State.
Now, the procedure under the said Order 24 of the Ondo State High Court Rules (Supra) is an off-shoot of the procedure hitherto known in England and most common law countries as demurrer proceedings. The operation of demurrer proceeding, before it was abolished in England, was the desire and necessity to permit a party to raise an objection on a point or points of law, so as to avoid unnecessary prolongation of litigation in Court which always led to unnecessary high cost of litigation. Thus, a defendant who conceived a point of law which could put an end to the case of his adversary, he was liberty to raise that point of law in limine, calling on the court to dismiss the action without the need for him to file a defence. A demurrer proceeding therefore entailed that where a defendant conceived that he has a legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or establish, the plaintiff is not entitled to any decree against the defendant. In such a situation, the defendant may raise the defence of demurrer by a motion urging the court to dismiss the suit, without him (defendant) being required to answer questions of fact from the plaintiff. In a demurrer proceeding therefore, the defendant must first admit the truth of the plaintiffs allegations and no evidence or questions of fact must be allowed, at that stage. See ALHAJI SULE KATAGUM & ORS V. M.E.K. ROBERTS (1967) 1 ALL N.L.R. P.127; FOKO V. FOKO (1968) N.M.L.R P.44; SHELL B.P. PETROLEUM DEVE. CO. OF NIGERIA LTD V. ONASANYA (1976) 6 S.C. P.89 at P.94; IGBOKWE V. UDOBI (1992) 3 N.W.L.R (PT.228) P.214 at P.229 and SANTA FE DRILLING (NIG) LTD V. AWALA (1999) 6 N.W.L.R. (PT.608) at P.629. It therefore means that in a demurrer proceeding, the defendant ought not file any statement of defence. Thus, where pleadings had been filed and exchanged, and a defendant has raised the point of law in his defence, it is the law that, the case must proceed to trial, and the legal point so raised would then be properly taken by the trial court after hearing evidence. See OBUMSELL V. UWAKWE (2009) 8 N.W.L.R (PT.1142) P.55 and ROCKSHELL INT’L LET V. B.Q.S. LTD (2009) 12 N.W.L.R (PT.1156) P.640 at P.670 PARAS. C-E.
My lords, i had pointed out in the course of this judgment that the objection raised before the lower court is on the ground that the action is caught by the principle of estoppel per rem judicatam. A plea of res judicata has the effect of ousting the jurisdiction of the court, as no court of law is permitted to litigate again on a matter which had previously been heard and determined to finality by a court of competent jurisdiction. I had also pointed out that as the objection raised in the instant, case could, if upheld by the trial court dispose of the whole action, I am of the view that it comes within the ambit of Order 24 of the Ondo State High Court (Civil Procedure) rules, 1987 (as applicable to Ekiti State).
Now, Order 24 rule has in clear terms abolished demurrer and replaced same with the procedure as encapsulated in rules 2, 3, and 4 thereof. It is not only in Ekiti State where the Ondo State High Court Rules applies that has abolished demurrer proceedings, but most jurisdictions in Nigeria have. Demurrer proceedings, in most jurisdictions in Nigeria has therefore been replaced by rules of Court which permit a defendant to include in his pleading, a provision wherein a point of law is raised, which will have the effect of putting to an end the proceedings. See EBERE V. ANYANWU For an easier grasp of the procedure under Order 24 of the High Court Rules (Supra) I wish to reproduce those provisions here:
ORDER24
PROGFEDINGS IN LIEU OF DEMURRER
1. No demurrer shall be allowed
2. Any party shall be entitled to raise by his pleading any point of law, and any, point so raised shall be disposed of by the judge who tries the cause at or after the trial.
Provided that by consent of the parties, or by Order of the Court or a judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
3. If, in the opinion of the court or a Judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set-off, counter-claim, or reply therein, the Court or Judge may thereupon dismiss the, action or make such other Order therein as may be just.
4. The Court or Judge may, Order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may Order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just”.
It would be seen that I have refrained from reproducing rule 5 of the said order 24 (Supra). That is deliberate, as I do not find that provision relevant in the determination of this appeal.
A deep and sober construction of the provisions of order 24 of the Ondo State High Court Rules (Supra) as applicable to, Ekiti State has revealed that two situations are envisioned therein. The first one is as provided in rule 2. Therein, a party is entitled to raise by his pleading any point of law and any such point of law shall be disposed of by the Judge who tries the case at or after the trial. I think the application of this provision poses no difficulty, as my understanding is that, all a party need do here, is to plead or raise the point of law in his pleading and thereafter lead evidence thereon in, the usual manner at the trial to establish that point of law, and the trial Judge shall dispose of, same in his judgment. In practice this procedure is resorted to many times by trial courts. This provision i.e. rule 2 of Order 24 has made an exception to this procedure, when it made a proviso thereto. Under that proviso, that point of law so raised may be set down for hearing and determination at any time before the trial, by the counsel of the parties or by the Court. That is the, procedure adopted by the Appellant in this case. I shall return to that issue later, Order 24 rule 3 provides for the Order the Court or Judge hearing the matter shall make in the circumstance.
Where the application is brought pursuant to order 24 rule 4 (Supra), I think the procedure is akin to that under a demurrer proceeding. Under that rule, a Court may order any pleading, to be struck out on the ground that it discloses no reasonable cause of action or answer under this same rule (rule 4), and the Court may order the action to be stayed or dismissed, where it finds that the pleadings are frivolous or vexatious, In such a circumstance, it is only the statement of claim that the Court will look into for the purpose of determining, as a preliminary point, whether or not the plaintiff’s pleading disclose reasonable cause of action, or whether it is frivolous or vexatious. In that respect, it is my view that under this rule, the defendant need not file a statement of defence before raising the issue. He is however deemed for the purposes of that application only, to have admitted the facts as pleaded by the plaintiff. See OKPOZO V. BENDEL NEWSPAPERS CORP (1990) 5 N.W.L.R. (PT.153) P.652) AT P.660 per Aniagolu: J.S.C. FRED EGBE V. ALHAJI ABUBAKAR ALHAJI & ORS (1990) 1 N.W.L.R (PT.235) P.311 at P.319. See also FOKO V. FOKO (Supra).
The situation however appears to me to be different under rules 2 and 3 of the said Order 24 of the High Court rules applicable to Ekiti State. It is pertinent to point out, that rules 2 and 3 are to be read together for the purposes of determining an application under this segment of Order 24 (supra). It is also clear that the point of law raised by a party in his pleading shall be disposed of by the trial Judge at (during) or after the trial. I had earlier on pointed but that this happens in practice in our trial courts, where a point of law is clearly pleaded in a statement of defence. However, in practice; evidence is taken to establish that legal point at or during the trial, counsel address on it during their final addresses after the close of evidence, and the trial judge pronounces on same, at the time, of final judgment, Where the, point of law raised succeeds, that ends the matter, but where it fails, the Court will then proceed to pronounce on the substantive suit, The procedure is however different under the proviso to rule 2 of order 24(Supra).
Under the proviso to rule 2 of Order 24 (supra), the point of law so raised is heard and disposed of as a preliminary issue before the trial, by consent of the parties or by an Order of the court. The provision however, does not provide for the mode of bringing the application by the parties, i.e., whether it is by motion or preliminary objection. All that is required is that, a defendant raising the point of law must have done so in his statement of defence. It appears to me that, in the circumstance, a defendant will be at liberty to request that the legal point raised by him be heard and determined before the trial, either by way of motion on Notice or preliminary: objection where he comes by way of motion on notice, order I rule 3 of the Ondo State High Court (Civil procedure) rules, 1987 as applicable to Ekiti require that such motion be supported by an affidavit. It stipulates as follows:
“3. Every motion shall be supported by affidavit setting out the grounds on which the party moving intends to rely…..”
However, a preliminary objection may be filed with or without an affidavit. The necessary thing is that the grounds upon which the objection is premised must be stated.
The Appellant in the instant, appeal raised the preliminary objection at the lower court by way of a motion on notice supported, by an affidavit. The Grounds upon which the application is premised are stated in the said motion and had earlier on been reproduced by me. At the pain of repetition I hereby reproduce those grounds again:
(i) Legs A and B of plaintiffs claim had already been determined as such the, said legs and the res therein constitute issue estoppels.
(ii) The res in leg C of plaintiff’s claim belongs to defendant solely, only, exclusively and mainly.
(iii) Plaintiff has nothing or property in the said, building having removed same and damaged the said building.
(iv) The suit is an abuse of court process
(v) The suit is unmaintanable (sic) and grossly inconsequential.
It will be seen therefore that, the Appellant certainly confused the issues to be considered in an application under order 24 of the High Court Rules (Supra). What is to be raised for determination at this preliminary stage is an, issue of law only. It is clear that issues 1, 2, 3, and 5 stated on the motion paper are purely issues of fact.
The Appellant had supported them by filling copious affidavits to which the Respondent filed a Counter Affidavit. Further and Better Affidavits and Further and Better Counter Affidavits were also filed.
Various documents including the judgment pleaded as res judicata were annexed to the various affidavits of both parties. Based on that scenario, the learned trial judge held as follows:
The question is whether res judicata can be disposed of by affidavit evidence, The burden is on the party setting up plea of res judicata to plead it and establish it to the satisfaction of the court that hiss (sic) opponent is seeking to put again into controversy and re-litigate the same question of law or fact which has already been finally decided between them. See Adebo v. Onisola (2005) 2 N.W.L.R (Pt.900) 149.
The defendant/appellant has crossed the first handle (sic) by pleading res judicata in paragraph 9 of his statement of claim. The law requires him to establish it to the satisfaction of the court at the trial of the case. I am however of the view that this cannot be done by affidavit evidence”.
The learned trial judge cited and relied on the case decided by this Court in EFFION V. IRONBAR (2000) 3 N.W.L.R (PT.650) P.545 at P.555 PARA H per Opene, J.C.A. where it was held in that case that, res judicata cannot be disposed of by affidavit evidence.
The case relied on by the learned trial judge is that of this Court. We have not been told by learned counsel for the Appellant that the decision was reached at per incuriam so as to make it inapplicable to this case. No effort was also made to distinguish that case from the facts of the instant case. In the circumstances, I am of the view that we are bound by the decision of EFFION V. IRONBAR (supra) relied on by the learned trial judge in reaching his decision. I therefore hold that the learned trial judge was right to have refused to dismiss or strike out the Respondent’s claim before him. I am also of the firm view that the point of law based on res judicata may be heard and disposed of during or at the trial where the Appellant may have the opportunity to lead evidence to establish the issue of res judicata raised by him. See order 24 rule 2 of the High Court Rules (Supra). I am however of the view that the learned trial judge was in error when he dismissed the Appellants objection. Since rule 3 of the said order 24 gives the Court power to “make such other order therein as may be just the proper order the learned trial judge should have made, in my view, is that of striking out, so that the Appellant may have an opportunity at the trial to establish the issue of estoppels per rem judicata pleaded by him. Consequently, I enter an order striking out the motion on notice dated the 03/7/2008 instead of dismissal.
On the whole therefore, I am of the view that this appeal has no merit and is accordingly dismissed. The Ruling of the learned trial judge delivered on the 11th day of February, 2009 is hereby affirmed, save that the order of dismissal made by the trial judge is substituted with an order striking out the said motion of 03/7/2008.
The matter is hereby remitted to the chief Judge Ekiti State for the matter to be heard on the merit by another judge other than J.O Adeyeye; J.
I award Twenty Thousand, Naira (N20, 000.00) in favour of the Respondent.
UWANI M. ABBA AJI, J.C.A. I have had the advantage of reading in draft the lead judgment of my learned brother, H. M. J.C.A. just delivered.
My learned brother has exhaustively considered the sole issue raised for the determination of the appeal and I agree with the reasoning and the conclusion reached therein that the appeal is unmeritorious. I also dismiss the appeal and endorse consequential order as to costs.
CHIDI NWAOMA UWA, J.C.A: I had the privilege of reading before now the judgment of my learned brother HARUNA M. TSAMMANI, J.C.A.
His Lordship, has dealt with the sole issue comprehensively and I adopt same as mine, in nothing that this appeal lacks merit, I too dismiss same. The ruling of the learned trial judge of 11/2/09 is affirmed except the order of dismissal which is substituted with an order of striking out. I abide by the order remitting the case to the learned Chief Judge of Ekiti State for reassignment to another judge, except J.O. Adeyeye, J. I, abide by the order made as to costs in the leading judgment.
Appearances
Taiwo Martins Ogunmoroti, Esq.For Appellant
AND
Oladele Adedeji Esq.For Respondent
